Excerpt: - .....filed against this order of the district judge.3. it has been argued that the order made by the learned district judge was without jurisdiction on two grounds. firstly, because there was absolutely no evidence whatever before him, accounting for the delay of six months from the 15th of july 1921, till the 12th of january 1922 and therefore in the absence of any evidence explaining or accounting for such delay, he had no jurisdiction to say that he would accept the explanation for the delay and excuse it. the learned vakil for the petitioner has referred me to a decision of wallace, j., reported in gopalaswamy aiyar v. ramachandra aiyar a.i.r. 1923 mad. 503 where the learned judge held that if there was no evidence at all before the court, explaining or accounting for the delay in.....

Judgment:

Srinivasa Aiyangar, J.

1. This is a very typical case. The plaintiff in Original Suit No. 5 of 1921 on the file of the District Munsif's Court of Tiruturaipundi would appear to have died on the 8th of January 1921.

2. No application for continuing the suit or bringing of the legal representatives of the plaintiff on record was made within 90 days therefrom. The deceased plaintiff left only two minor children and their widowed mother. It was only on the 29th of April 1921 that an application was made by the mother, as next friend of the minor sons of the deceased plaintiff, for bringing them on record, as legal representatives. The application was not in terms, for setting aside the abatement, which had automatically resulted in the meantime, on the expiry of ninety days, after the death of the plaintiff. Curiously enough, this application seems to have been headed, as 'under Section 50 of the Civil Procedure Code.' I imagine that the mistake must have been caused by the learned vakil, who was acting for the petitioners, allowing his clerk to find out and put in the proper section and the clerk turning over the Procedure Code and finding in the marginal note against Section 50 the words ' legal representatives,' put down that section, as the one that applied. However that may be, when the application came on, for hearing before the District Munsif on the 15th of July 1921 he rejected it, I am constrained to say, in a somewhat summary fashion. He must have realised that, a mistake having been caused by ignorance, it would have been right and proper to allow the petitioners to amend the petition and make it a proper petition, under Order 22, Rule 9, for the purpose of setting aside the abatement. If any surprise had been caused-to the defendants in the case, an adjournment might have been granted to them to meet the petition as amended. Instead of that, he dismissed the application altogether, intimating at the same time, however, that; an application under the proper section, namely, Order 22, Rule 9 would be open to them. If an application under that rule to set aside the abatement had been made, soon after the dismissal of this previous petition, it would have been alright ; but unfortunately, for some retsor, which is far from clear from the records, or from the affidavit filed in the case, no such application was put in, till the 12th of January 1922, that is, till the expiry of nearly six months after the dismissal of the first application. This application was again dismissed by the District Munsif, on the 19th of April 1922, on the ground that the long delay in filing the petition was not explained and that there was no reason to excuse the delay, apparently under the provisions of Section 5 of the Limitation Act. Against this order of the District Munsif, an appeal was preferred to the District Judge of East Tanjore, and he, by his judgment set aside the order of abatement and directed that the case should be taken on file and disposed of. The present Revision Petition has been filed against this order of the District Judge.

3. It has been argued that the order made by the learned District Judge was without jurisdiction on two grounds. Firstly, because there was absolutely no evidence whatever before him, accounting for the delay of six months from the 15th of July 1921, till the 12th of January 1922 and therefore in the absence of any evidence explaining or accounting for such delay, he had no jurisdiction to say that he would accept the explanation for the delay and excuse it. The learned vakil for the petitioner has referred me to a decision of Wallace, J., reported in Gopalaswamy Aiyar v. Ramachandra Aiyar A.I.R. 1923 Mad. 503 where the learned Judge held that if there was no evidence at all before the Court, explaining or accounting for the delay in making the application, any order that may be purported to be made under Section 5 of the Limitation Act, excusing the delay, is an order made without jurisdiction, or is the reault of material irregularity in the exercise of jurisdiction. Looking at the affidavit that has been filed in support of the application, is clear that there might have been some excuse for not making the application till the 29th of April, or even till the 15th of July, when the Court rejected the previous application, on the ground that it was not properly made. On the 15th of July, all the necessary information had been furnished and the necessary legal advice obtained, so that the plaintiff's representatives could be under no mistake whatever, with regard to their exact position after that date. There is not a word of explanation in the affidavit, as to why the application, to set aside the abatement, was not made during the period of six months that followed. If some explanation had been given in the affidavit, it was no doubt open to the learned District Judge to have accepted it and it would not then be open to this Court, by way of revision, to say that he was not entitled to accept that explanation, however inadequate that may be : but in the absence of any explanation whatever and any accounting for this long delay of six months, it seems to me that the learned District Judge acted either without jurisdiction at all, or at any rate illegally or with material irregularity in the exercise of jurisdiction, so as to empower this Court to interfere and set aside his order. The learned District Judge also states that a Court in dealing with an application under Rule 9(2) of Order 22, Civil Procedure Code, was not confined to circumstances stated in Section 5 of the Limitation Act. An application under Sub-Clause (2) of Rule 9 of Order 22 is an application to set aside the abatement, resulting from the failure or omission of the parties to apply to continue the suit, by substituting the legal representatives and it may be correct to say that the sufficiency of the cause shown, for not continuing the suit, within the period of limitation allowed for the purpose, would be determined, on considerations different from those enumerated in Section 5 of the Indian Limitation Act. But when it comes to a question of the application of Section 5 of the Limitation Act, what we have got to see is, as decided in numerous cases, both by this Court and by the Privy Council, whether the petitioner has satisfactorily accounted for the delay of every day, that has occurred between the expiry of the period of limitation prescribed and the actual date on which the application comes to be made. It is only in cases where such explanation is furnished and accepted by the court that the Courts are really empowered under the terms of the section to excuse the delay. It seems to me, however, that had the learned District Judge realised that he was confined to the terms of Section 5 strictly, he would not have made the order he has made. Apparently he was oppressed with the idea that in the case before him there were two minors represented by their widowed and probably helpless mother and some notion of doing substantial justice must have so far over, weighed in his mind as to persuade him-self to depart from the strieb adherence to the law. But I consider it would be a dangerous precedent to allow such considerations to prevail, when the law lays down strictly what ought to be done and I am therefore constrained much against my will, to set aside the order of the learned District Judge and dismiss the application of the plaintiff for setting aside the abatement.

4. The petitioner will recover from the respondents his costs in this Court, inclusive of the costs he paid to the guardian ad litem. Petition accepted.